• Holding of Full & Final Settlement and Relieving Letter by an employer

Hi All,
As per my Appointment Letter 3 months' Notice Period is necessary on either side for termination of employment, now I have got a new job and the new company is allowing me to serve notice period for 45 days only. Kindly help me to know the below mentioned points in this context:
1. Can my employer hold my last month's salary and Full & Final Settlement? I have already asked them to recover the balance notice period from my leave encashment, amount of leave encashment is higher than the recovery amount.
2. Can my employer hold the Relieving Letter?
3. Can i take any legal action if the above mentioned two things are held?
4. Can my employer take any legal action against me for not serving full notice period?
5. Can my current employer take any legal action against my new employer for hiring me since they have not issued any Relieving Letter. Please note my current employer doesn't require any Relieving Letter from my present employer, an undertaking will be sufficient for them.

Regards, Arindam Sarkar
Asked 2 months ago in Labour from Kolkata, West Bengal

Hello,

 

Your appointment letter can be taken as a contract between you and your employer. Hence, it is up to the employers discretion to reserve the full notice period as provided in the Letter of Appointment.

So to answer your queries:

1. Can my employer hold my last month's salary and Full & Final Settlement? I have already asked them to recover the balance notice period from my leave encashment, amount of leave encashment is higher than the recovery amount.
---The company has to agree to your notice period "buy out" offer. Often companies prefer Man-hours than monetary compensation to find suitable replacement of a discharged employee in the meanwhile. So they can hold your last months salary or full and final settlement until the expiration of the predefined notice period or anything otherwise mutually agreed between you and your employer in response to your application for an early release.

2. Can my employer hold the Relieving Letter?
-Relieving letter is provided on the last day of service with an organization, so the possibility mentioned above holds good for this as well.
3.Can my employer hold the Relieving Letter?
Yes you can, but the merit will be in your favor only when your employer doesn't release the FnF settlement and Relieving letter even after the expiration of your contracted notice period or as agreed by your company.
4.Can my employer take any legal action against me for not serving full notice period?
--It is a violation of contract, hence they can. But in practical situations, the employers generally try to negotiate to secure their interests within the provisions of the contract and withhold the release documents. But they can if they wish to.
5. Can my current employer take any legal action against my new employer for hiring me since they have not issued any Relieving Letter. Please note my current employer doesn't require any Relieving Letter from my present employer, an undertaking will be sufficient for them.
--Since the new employer has merely extended an offer of employment that you possibly may have accepted, hence the liability rests on you and not with your new employer added by the fact that they will obtain an undertaking from you at the time of joining.
Companies can take release letters at a later date for early joining according to the extent defined in your undertaking.

Hope this clarifies.



Aniruddha Chakraborty
Advocate, Hyderabad
17 Answers

5.0 on 5.0

1. Yes the company can hold same and can ask for damages also from you for not serving notice period.

2. It can bold same pending noc though you can give notice and file suit for same.

3.yes you can file suit for same.

4. He file suit and give notice to recover damages from you.

5.No action against the new employer is maintainable.

Shubham Jhajharia
Advocate, Ahmedabad
19366 Answers
76 Consultations

5.0 on 5.0

It is at discretion of employer to waive notice period and accept salary in lieu of notice period 

 

2) employer can hold your salary and full and final settlement 

 

3) he can hold your relieving letter 

 

4) employer can declare you an absconder if you fail to serve notice period 

 

5) no action can be taken against your new employer 

Ajay Sethi
Advocate, Mumbai
66998 Answers
4045 Consultations

5.0 on 5.0

Yes you can buy the remaining notice period from company. 

If you buy the same he can't hold relieving letter. 

No if you abide as stated above. 

No. 

Prashant Nayak
Advocate, Mumbai
12939 Answers
23 Consultations

4.6 on 5.0

Your current employer knows the law. Once you submitted resignation you are free to join anywhere pending releiving from your previous employer. 

You employer can not force you serve for the notice period. If you do not serve you need to pay up for the same.

you employer can take legal action only for any uncleared dues or liabilities to the company if any.

except that no legal action can be taken by your previous company.

your employer can hold the releiving till all dues if any are cleared by you.

Kallol Majumdar
Advocate, Kolkata
1397 Answers
2 Consultations

5.0 on 5.0

1. As per the terms of appointment your notice period is 3 months which may be reduced by the management if they are agree to relieve you after 45 days of notice working period you must take something in writing so that you can claim further in case they differ from their decision.

2. If your employer is agreed for 45 days notice serving period then and they cannot hold your relieving letter after 45 days of service of notice.

3. Yes you can take any legal action in case they differ from their decision and hold your relieving letter and experience certificate including your full and final settlement.

4. If your employer is agreed for 45 days notice serving period in writing they don't have any option to go for legal action against you.

5. Your current employer has nothing to do with your previous job is independent employer it is not related to your personal and previous dealing with your previous company

Vimlesh Prasad Mishra
Advocate, Lucknow
5511 Answers
18 Consultations

4.9 on 5.0

Dear,

        - As you mentioned that you already talk with them with this issue and ready to pay 

          price if you not fulfill 3 months notice period time, then they will not hold your salary.

       - NO

       - If this happen then serve legal notice and after that file case in labor court.

      - no

      - no

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

1.They should not if they then file a complaint with the labour department immediately.

2. Why, when you are buying back the notice period.

3. As suggested under point no.1 & 2.

4. No.

5. No,go ahead.

Koshal Kumar Vatsa
Advocate, Gurgaon
1777 Answers
1 Consultation

5.0 on 5.0

1. No they can not hold the dues. 

2. no

3. yes

4. they may at max take salary from you for the said period 

5. NO. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
16920 Answers
259 Consultations

5.0 on 5.0

If there is notice buy back clause than you can offer buy back of notice period. Any hold you can recover by approaching labor commissioner.

NO right, but you have to honor appointment terms.

Can approach LC. 

NO action except holding F&F.

NO.

Yogendra Singh Rajawat
Advocate, Jaipur
13251 Answers
18 Consultations

4.6 on 5.0

1. Withholding salary is permissible in default of not serving notice period only if the same is specifically mentioned in the contract and not otherwise.

2. Yes

3.  Yes but the remedy through court of law is time consuming and not so cost effective.

4. Not much.

5. No, not at all. 

Devajyoti Barman
Advocate, Kolkata
17816 Answers
253 Consultations

5.0 on 5.0

In certain cases, there is buy out  of notice period and you may take benefit of that. You may take legal action or the company may take any action only on basis of employment agreement. Your new employer may not any action against old employer. 

Ganesh Singh
Advocate, Delhi
3115 Answers
9 Consultations

4.5 on 5.0

1. If there is a condition in your employment term that you can pay salary in lieu of the notice period then you should mention in your resifnation letter to adjuct your LTA with the salary to be paid in lieu of the balance notice period. In that case the employer should not object.

 

2. The Employer should not withhold the above two mitems under the aboce circumstances.

 

3. Legal action can be taken but it will take ages to be decided and your legal expenses might over pass your amount claimed, in the long run. So, amicable settlement is advised.

 

4. He might declare you absconder. If there is any Bond you have signed, then he might claim the Baond amount. Make sure you return all the Company articles to the Company and take acknowledgement of receipt of the same.

 

5. Your present employer can not take any legal action on your future employer for employing you without perusing the release letter.

Krishna Kishore Ganguly
Advocate, Kolkata
22519 Answers
595 Consultations

5.0 on 5.0

1. Your employer may hold your f&F  for the purpose of deducting the notice period salary even though you requested him to deduct the same from leave encashment because that needs clarity.

2. Once he has relieved you officially then he may not be able to hold your relieving letter.

3. Yes, you can by first issuing a legal notice on this.

4. Once he has accepted the resignation then he may not be able to take any legal action ion this.

5. No, he has nothing to do with your new employer, he can initiate any action only against you and not against any third party.

T Kalaiselvan
Advocate, Vellore
56740 Answers
705 Consultations

5.0 on 5.0

If you have offer them to recover the basic pay of balance notice period from leave encashment then they cannot hold your salary.

No your employer cannot hold your relieving letter.

Yes you can take legal action in case of hold of salary or relieving letter.

Your employer can take legal action for recovery of balance amount if they doesnt settle it from leave encashment.

No they cannot take any legal action against your new employer.

Mohit Kapoor
Advocate, Rohtak
3598 Answers
1 Consultation

5.0 on 5.0

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